Order:

COMPLAINT

The complaint alleged that the subject, a New Castle City councilman, violated the New Castle County Ethics Code when he spoke with the complainant on the telephone about a constituent community issue in a rude manner which included inappropriate and racist language.The Commission reviewed the documents presented by the complainant and concluded that the matter is outside the jurisdiction conferred upon the Commission by the New Castle County Code.

FACTUAL FINDINGS

No findings of fact were determined in this matter for the reasons set forth below.The allegations, however, include a fact pattern that occurred on May 23, 2016, where a New Castle City councilman, who is white, responded on the telephone to questions from a constituent, who is African-American, by referring to “you people” who “live in a racist community.”The councilman accused the complainant of being a racist and of terrorizing a white community resident.The councilman told the complainant that he had told the white resident “to move out of that racist community many times.”The complainant stated that the councilman spoke to him in an angry and demeaning manner, and raised his voice several times during the phone call.The complainant feels violated and does not believe that an elected official should treat a constituent in this manner.

NEW CASTLE COUNTY ETHICS CODE

New Castle County Code Section 2.03.104.A states:

No County employee or County official shall engage in conduct which, while not constituting a violation of Subsection 2.03.103.A.1, undermines the public confidence in the impartiality of a governmental body with which the County employee or County official is or has been associated by creating an appearance that the decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.

Further, Section 2.03.102 includes the following pertinent definitions (emphasis added):

County means New Castle County and including any County Department.

County employee means any person who receives compensation as an employee of a County Department or County row office.

County official means any person elected or appointed to any County office, board, commission or the New Castle County Council Audit Committee provided, however, that for purposes of Sections 2.03.103(B)(2), 2.03.103(C), and 2.03.104(C), "County official" does not include any member of a board or commission which operates solely in an advisory capacity, and whose members are not compensated, other than reimbursement for expenses.

The Ethics Commission has long applied the standard for judging such conduct which is described in the Delaware Courts as “conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official’s ability to carry out [official duties] with integrity, impartiality and competence is impaired.” In re Williams, 701 A.2d 825, 832 (Del. Super. 1997).In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts.Id.

BURDEN OF PROOF

For the reasons stated below, the burden of proof here is not relevant.

COMMISSION FINDINGS

The subject of this complaint is a New Castle City councilman; an elected official for the City of New Castle.He is not a County official or County employee whose conduct would be governed by the New Castle County Ethics Code.As such, this Commission has no jurisdiction over the subject of this complaint nor his conduct as a New Castle City councilman. Having no jurisdiction over this matter, the Commission has no alternative other than to dismiss the complaint without investigation.If, however, it was proven that this behavior, as alleged in this complaint and described above, had been exhibited by an official or employee of New Castle County, and, therefore, covered by the County Ethics Code and within the jurisdiction of this Commission, this Commission would have regarded such behavior as a flagrant violation of the Ethics Code for which a recommendation of removal from office would be appropriate.